Like it or not, this land may not be your land

STATE YOUR CASE

Published 6:30 am, Friday, January 30, 2009

The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q. What do I need to do to change the name on a deed? The property belonged to my aunt and uncle, and they never had children. They have been dead for about 10 years, and neither of them died with a will. I am taking care of the property and paying the taxes. I want to change the deed to my name. Where do I start?

Even though you have been taking care of the property and paying the taxes, you may not be the current and legal owner. Because your aunt and uncle died without a will, you will first have to determine who inherited the property under Texas intestacy laws. You can find a good two-page chart summarizing the intestacy laws at www.co.harris.tx.us/probate/Crt1/Forms.aspx.

Once there, you can print up the form called Descent and Distribution Chart.

Your question doesn’t contain enough information to determine who would inherit the property.

To make that determination, it would be necessary to know who passed away first, exactly when he or she died (this is important because the intestacy laws changed a number of years ago), whether your aunt’s or uncle’s parents were living when they died, whether they had brothers and sisters who were living when they died, and whether the property was separate or community property.

If you have any other aunts and uncles, any siblings or any cousins, the likelihood is that you are not the sole owner of the property, but instead, own only a part of it.

Regardless, to clear up title to the property, you may be able to file a small estate affidavit with the court.

In order to use a small estate affidavit, your aunt and uncle must have died with a total probate estate that was less than $50,000. In calculating the $50,000 amount, you don’t include the value of their home, $30,000 worth of personal property, or any other assets which passed directly to a beneficiary, such as life insurance or a payable on death account.

The small estate affidavit is a form that must contain a number of provisions, all of which are listed in Section 137 of the Texas Probate Code. You can find the form quickly on the Internet, or many probate clerks’ offices will provide a form for you to use.

Once the form is complete, you would file it, along with an order for the judge to sign, in the proper court in the county where your aunt and uncle lived. Counties charge different fees to file the affidavit.

The small estate affidavit would transfer the property to the new owners.

You are not required to hire a lawyer to prepare a small estate affidavit.

However, many people do not want to prepare the form on their own, or they find themselves unable to complete the form correctly without an attorney.

For instance, you would need to determine who actually inherited the property, and that can be quite difficult as noted previously in this answer.

Therefore, it may be necessary to hire an attorney.

If your aunt and uncle’s estates were too large for a small estate affidavit, or if they owned any other real estate besides their homestead, then you may be able to clear up title to their property by recording an affidavit of heirship in the real property records of the county in which your aunt and uncle lived.

This kind of affidavit doesn’t involve any court proceedings, but is a statement of facts concerning who inherited your aunt and uncle’s estates.

If neither of the affidavits mentioned previously are available as ways to clear up title to your aunt and uncle’s property, then you will likely need to conduct a complicated heirship determination at the courthouse.

Even if you are not your aunt and uncle’s sole heir, you might be entitled to the property as a result of adverse possession. To acquire a property by adverse possession, you would need to use or enjoy the property and pay the property taxes for 10 years, and then you would need to file a lawsuit claiming ownership.

If the property is over 160 acres, you must wait 25 years.

In the end, if you are just one of several co-owners, you can ask them to give you the property, or you can offer to buy them out.